Dismissing Employees for Behaviour Outside the Workplace
Question for employers – when is it fair to dismiss an employee for their behaviour outside the workplace?
Dismissing an employee for behaviours outside the workplace can be a tricky situation to navigate. In this article we will discuss the fundamentals of a fair dismissal and where an employer may consider an employee’s behaviour outside of work.
What are the fundamentals of fair dismissal?
For dismissal to be fair an employer should:
- show that the reason (or principal reason) for the dismissal was one of the five potentially fair reasons (in accordance with Section 98 (1) and (2) ERA 1996)
- act reasonably in treating that reason as a sufficient reason for dismissal
Under the Employment Rights Act 1996 there are 5 potentially fair reasons for dismissal:
- Conduct
- Capability or qualifications
- Redundancy
- Contravention of a statutory restriction
- Some other substantial reason
When is it justified to dismiss an employee for behaviours outside the work place?
Some case examples involving social media demonstrate the need to take a detailed analysis of the facts in each case:
In Preece v JD Wetherspoons plc an employee made inappropriate comments about her customers on Facebook. The Company dismissed her for gross misconduct. She brought a claim against the Company for unfair dismissal and was unsuccessful. The Tribunal found that she had been fairly dismissed for gross misconduct and was in breach of the Company’s email and internet policy.
In Whitham v Club 24 t/a Ventura an employee made derogatory remarks about her employer on Facebook and was dismissed. She brought a claim for unfair dismissal. The Tribunal in this case found that the dismissal was unfair. The Company claimed that the comment had damaged their relationship with their Client, however no investigation was carried out into this and no evidence produced to confirm this. The employee had an exemplary record, a good working relationship with the Client in question and had immediately issued a written apology once the concern was raised. It should also be noted that the Company’s social media policy was broadly worded and she was not found to be in breach of this.
These cases illustrate that it is crucial to consider the nature and seriousness of the comments made by the employees. In Witham the Tribunal found the comments were mild, however if the Company’s social media policy had been more tightly worded to include a policy for use of platforms outside of the workplace, the Tribunal may have concluded that the dismissal was fair.
If dismissing an employee for conduct outside of the workplace, it is important to identify how this conduct still has relevance to the employment relationship.
If an employer finds itself in a situation where they are dismissing an employee for behaviours outside the workplace they should ensure they have evidence of investigation, following a fair procedure and ensure their decision is fair and reasonable in all circumstances.
Please contact a member of our team if you would like us to review your policies and procedures to ensure they cover misconduct outside of the workplace and the potential consequences for breaching such policies.
